Washington Lawyer

The Judge Is (Still) Not In

From Washington Lawyer, January 2016

By David O'Boyle

Illustration by Brain Stauffer/theispot.comWhen Judges William W. Nooter and Steven M. Wellner were appointed to the Superior Court for the District of Columbia in November, three years had passed since their names were first sent to the U.S. Senate for confirmation. In those years, the Superior Court had to shuffle its judicial roster to mitigate the effects of a depleted bench.

Currently, five Superior Court nominees are still awaiting Senate action. The mounting vacancies have had an adverse impact on the family court, where judges make "life and death decisions about neglected and abused children in the District," wrote Superior Court Chief Judge Lee F. Satterfield to then Senate Majority Leader Harry Reid in 2014, urging the Senate to act on the pending judicial nominees.

At the time of Nooter's and Wellner's appointments, four family court judges were handling five domestic relations and neglect calendars. According to the court, more than 2,500 new domestic relations and neglect cases were filed between January 1 and September 30, 2015, with each judge handling an average of more than 600 new cases. To help reduce the burden, the court's four juvenile delinquency judges have been assigned nearly 600 of those cases.

D.C. Attorney General Karl A. Racine says the "unexcused delays" are causing further harm to families and children with urgent cases.

"The ability of judges to make the sound decisions based on evidence and experience is being significantly hampered by the fact that they're not able to devote the necessary time and attention to these critical cases," Racine says.

In fiscal year 2014 the D.C. Superior Court and the D.C. Court of Appeals, which is also waiting for the Senate to vote on one pending nominee, resolved nearly 100,000 cases. At full strength, the Superior Court has 62 judges, but the climbing number of unfilled vacancies due to additional retirements worries Chief Judge Satterfield.

Before Nooter and Wellner, the last Superior Court judge confirmed by the Senate was Judge Robert D. Okun in May 2013.

Washington Lawyer reached out to Nooter and Wellner. Neither was immediately available for comment. However, D.C. Courts spokesperson Leah Gurowitz provided this response: "We are very pleased that two nominees who have been waiting a long time have finally been confirmed."

A Unique Judicial Nomination Process

The District's judicial nominations to its local courts—the D.C. Court of Appeals and the D.C. Superior Court—are subject to a process unique to the city due to its status as a federal enclave. The D.C. Judicial Nomination Commission accepts applications for judicial vacancies and submits three names to the White House. The president then selects one nominee, whom he forwards to the Senate for confirmation.

Nooter, previously a magistrate judge on the Superior Court, and Wellner, who served as administrative law judge at the D.C. Office of Administrative Hearings, had been nominated twice by President Obama. Neither nominee received a floor vote before the last Congress expired in 2013, requiring the president to nominate them again for confirmation by the current meeting of the legislative body.

Judge Satterfield says it was not a matter of questionable qualifications or ideology that kept the nominees from the bench. "They [were] nominated twice by the president . . . and they went to the committee and were voted out twice. You can't be more qualified than that," he says.

Five more nominations have been submitted to the Senate by the president to fill vacancies on the court. Julie H. Becker, a supervising attorney at the Legal Aid Society of the District of Columbia; Steven Nathan Berk, a principal and founder of Berk Law PLLC; Robert A. Salerno, a special counsel at Schulte Roth & Zabel LLP; Darlene Michele Soltys, a senior attorney in the Violent Crime and Narcotic Trafficking Section of the U.S. Attorney's Office for the District of Columbia; and Elizabeth Carroll Wingo, a Superior Court magistrate judge, await hearings before the Senate Committee on Homeland Security and Governmental Affairs, which considers the District's judicial nominations before they reach the Senate floor for a vote.

Shuffling Judges to Cope With Shortage

Chief Judge Satterfield says he cannot continue to draw from the pool of family court judges to cope with the vacancies and additional retirements. Before Judges Nooter and Wellner received Senate confirmation, Satterfield was considering drawing judges from the Criminal Division, which meant criminal cases could be delayed—or continued—for lack of judges.

Illustration by Brian Stauffer/theispot.com

During the past two years, no Criminal Division cases were continued because a judge was not available. Judge Satterfield credits his presiding and deputy presiding judges for changing the culture at the court where case continuations were frequent, but now he worries that the increasing court vacancies could reverse that shift. "I'm fearful that it is going to change back to the way it was, and that is just going to delay justice," Satterfield says.

Kenyan R. McDuffie, chair of the Judiciary Committee of the D.C. Council, agrees that the lagging judicial appointments harm the District's criminal justice system. "The system doesn't work unless the courts function at a high, efficient level. The burden that is placed on our court system . . . has negative impacts on the individuals seeking justice in the District of Columbia," McDuffie says.

In November 2014 the Washington Council of Lawyers (WCL) also sent a letter to Senator Reid urging swift action on the pending judicial nominations in the interest of the delivery of justice, especially for the District's most vulnerable populations.

"Many of the cases decided in Family Court involve low-income families, including children who are involved with Child Protective Services in abuse and neglect cases. The Family Court has a 'one family-one judge' policy, ensuring that a single judge knows the family well enough to make critical decisions," wrote Paul S. Lee, president of the WCL. In January 2015 the group also asked Senate Majority Leader Mitch McConnell to "act immediately" to fill the vacancies on the court.

WCL Executive Director Nancy A. Lopez says the unfilled positions at the D.C. Courts delay justice for thousands of D.C. residents.

"For the past few years, the Family Court has operated with fewer sitting judges than usual due to the vacancies. This creates unsustainable caseloads for judges who have jurisdiction over issues such as custody, guardianship, child support, abuse and neglect, juvenile delinquency, and mental health matters. The result is that many families have been shortchanged of diligent, swift, and efficient reviews of their cases," Lopez says.

Victims of National Politics?

State senators might bargain with Senate leadership to get their legislation to the floor, but without any voting members in the Senate, the District is virtually powerless. As an alternative means for compelling Senate action, the Superior Court and advocacy groups like the WCL have directly called on the Senate to act on the nominations with urgency.

Racine believes the nominees are being stalled because of political gridlock. "These judges are not being held up on ideological grounds. There's no question that they're well qualified. They're being held up simply because of national politics," he says.

Delaware Senator Tom Carper, a ranking member of the Committee on Homeland Security and Governmental Affairs, calls the delay of the District's nominations "shameful."

"The way we as a body are treating the nominees for the court positions in the District of Columbia is a pure and simple outright violation of the golden rule," Carper says. "It needs to stop." In a press statement issued after Nooter's and Wellner's confirmation on November 19, Carper called the Senate's action "welcome news, albeit long-overdue."

While the District does not have the ability to take direct action in the Senate, McDuffie is hopeful that District residents and others around the country will see the negative impact that Senate inaction has had on the city's local courts.

"Unless and until enough people—not only in the District, but around the country—recognize how badly people are impacted by this, we probably won't see the type of changes we want," McDuffie says.

There is also a concern that as the nation moves deeper into election season, Senate business will slow significantly, and the nominations will remain in limbo. The court averages three to four retirements each year, and significant delays in judicial nominations could result in additional vacancies.

"If you look at the demographics of the court, vacancies are only going to increase as more and more judges are hitting retirement age," Racine says. "There is a great sense of urgency to get Congress to play its role in this process in the interest of the District of Columbia, not for reasons related to national politics."

Despite the uncertainty over the unfilled vacancies, judges continue to retire. In April the court faces another vacancy with the retirement of Judge Judith N. Macaluso.

Reach D.C. Bar staff writer David O'Boyle at [email protected]. Follow him on Twitter at @d_oboyle.